Citation Nr: 0938177
Decision Date: 10/07/09 Archive Date: 10/14/09
DOCKET NO. 05-34 130 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for lymphoma of the right
testicle as a result of exposure to ionizing radiation.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Andrew Dubinsky, Associate Counsel
INTRODUCTION
The Veteran had active service from October 1946 to June 1947
and November 1951 to November 1953.
This matter arises before the Board of Veterans' Appeals
(Board) from a March 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri.
In June 2008, the Board remanded the case to the RO via the
Appeals Management Center (AMC) for further notification,
development, and readjudication of the claim. The requested
action has been completed, and the case has been returned to
the Board for further appellate consideration.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDING OF FACT
Lymphoma of the right testicle was not manifested in active
service, and any current lymphoma is not otherwise
etiologically related to such service, to include in-service
exposure to ionizing radiation.
CONCLUSION OF LAW
The Veteran's lymphoma of the right testicle, claimed as
secondary to exposure to ionizing radiation, was not incurred
in or aggravated by military service, nor may it be presumed
to have incurred therein. 38 U.S.C.A. §§ 1110, 1112 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA describes VA's duty to notify and assist claimants
in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information and any medical or lay evidence that is necessary
to substantiate the claim. 38 U.S.C.A. § 5103(a) (West
2002); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi,
16 Vet. App. 183 (2002). Proper VCAA notice must inform the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim, (2) that VA will
seek to provide, and (3) that the claimant is expected to
provide. The Board notes that the requirement of requesting
that the claimant provide any evidence in his or her
possession that pertains to the claim was eliminated by the
Secretary during the course of this appeal. See 73 Fed. Reg.
23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind
fourth element notice as required under Pelegrini II,
effective May 30, 2008).
VCAA notice should be provided to a claimant before the
initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112
(2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128
(2005), rev'd on other grounds, Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the
initial unfavorable AOJ decision, remand and subsequent RO
actions may "essentially cure [] the error in the timing of
notice"). VCAA notice should also apprise the claimant of
the criteria for assigning disability ratings and for award
of an effective date. Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
In October 2004 correspondence, the RO advised the Veteran of
what the evidence must show to establish entitlement to
service connection for his claimed disorder and described the
types of evidence that the Veteran should submit in support
of his claim. The RO also explained what evidence VA would
obtain and make reasonable efforts to obtain on the Veteran's
behalf in support of the claim. In July 2008 and September
2008, the AMC advised the Veteran that he could submit
alternate evidence to establish radiation exposure to support
his claim for service connection, including statements from
service medical personnel or statements from individuals who
served with him to corroborate in-service exposure to
radiation.
The Board notes that the Veteran was not provided notice
regarding the evidence and information necessary to establish
a disability rating and effective date in accordance with
Dingess v. Nicholson. 19 Vet. App. 473, 484 (2006).
However, the Board has concluded that the preponderance of
the evidence is against the Veteran's claim. Therefore, any
questions as to the appropriate disability rating or
effective date to be assigned have been rendered moot, and
the absence of notice regarding these elements should not
prevent a Board decision. See Mayfield v. Nicholson, 19 Vet.
App. 103 (2005); see also Sanders v. Nicholson, 487 F.3d 881
(Fed. Cir. 2007) rev'd on other grounds sub nom. Shinseki v.
Sanders/Simmons, No. 07-1209 U.S. (April 21, 2009).
The Board further notes that the Veteran was provided with a
copy of the March 2005 rating decision, the October 2005
statement of the case (SOC), the June 2008 Board remand, and
the June 2009 supplemental statement of the case (SSOC),
which cumulatively included a discussion of the facts of the
claim, notification of the basis of the decision, and a
summary of the evidence considered to reach the decision.
Therefore, the Board concludes that the requirements of the
notice provisions of the VCAA have been met, and there is no
outstanding duty to inform the Veteran that any additional
information or evidence is needed. Quartuccio, 16 Vet. App.
at 187.
To fulfill its statutory duty to assist, the RO/AMC obtained
the Veteran's private medical records and associated them
with the claims file. The record reflects, however, that the
Veteran's service treatment records are fire-related. Where
the Veteran's service treatment records are presumed
destroyed or are otherwise unavailable through no fault of
the claimant, the Board recognizes that VA has a heightened
obligation to assist the veteran in developing his claim and
explain its findings and conclusions and to consider
carefully the benefit-of-the- doubt doctrine. 38 U.S.C.A. §
5107(b) (West 2002); O'Hare v. Derwinski, 1 Vet. App. 365,
367 (1991). In the present case, the RO submitted a request
to the Defense Threat Reduction Agency in December 2004 in
order to verify the Veteran's participation in a "radiation-
risk activity." See 38 C.F.R. § 3.309(d) (2008). Also in
December 2004, the RO submitted a request to the Proponency
Office for Preventative Medicine (POPM) for the Veteran's DD
form 1141 or an equivalent record of occupational radiation
exposure. As shown by a memorandum dated in January 2005,
the POPM forwarded the RO's request to the U.S. Army
Radiation and Dosimetry Laboratory in Redstone Arsenal,
Alabama (Dosimetry Laboratory). The DTRA responded to the RO
in January 2005 with a letter stating that it was unable to
verify the Veteran's participation in a "radiation-risk
activity." In February 2005, the Dosimetry Laboratory
informed the RO that it was unable to locate any records for
the Veteran and that their records dated only as far back as
1954. The Board finds that the RO's development of this
claim met its heightened obligation to assist.
The Veteran has not made the RO or the Board aware of any
other evidence relevant to this appeal that he or the VA
needs to obtain. Based on the foregoing, the Board finds
that all relevant facts have been properly and sufficiently
developed in this appeal and no further development is
required to comply with the duty to assist the Veteran in
developing the facts pertinent to the claims. Accordingly,
the Board will proceed with appellate review.
Legal Criteria
Service connection for conditions claimed to be due to
exposure to ionizing radiation in service can be established
in different ways, which have been outlined by the Court.
See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Ruker v.
Brown, 10 Vet. App. 67, 71 (1997); see also Ramey v. Brown, 9
Vet. App. 40, 44 (1996), aff'd, 120 F.3d. 1239 (Fed. Cir.
1997).
First, service connection may be granted if a Veteran had the
disease in service or, in the case of malignant tumors, if
the tumor was manifested to a degree of 10 percent or more
within the first post-service year. 38 U.S.C.A. § 1112; 38
C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a).
Second, if a Veteran participated in service in a radiation-
risk activity (as defined by statute and regulation) and,
after service, developed one of certain enumerated cancers,
it will be presumed that the cancer was incurred in service.
38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Alternatively,
if a Veteran was exposed in service to ionizing radiation
and, after service, developed any cancer within a period
specified for each by law, then the Veteran's claim is
referred to the Under Secretary for Benefits who must
determine, based on the extent of exposure, whether there is
a reasonable possibility that the disease was incurred in
service. 38 C.F.R. § 3.311.
Generally, where the determinative issue involves a medical
diagnosis or causation, competent medical evidence is
required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This
burden typically cannot be met by lay testimony because lay
persons are not competent to offer medical opinions.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).
However, lay persons can provide an eye-witness account of a
veteran's visible symptoms. See, e.g., Caldwell v.
Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay
evidence concerning manifestations of disease may form the
basis for an award of service connection where a claimant
develops a chronic disease within a presumptive period but
has no in-service diagnosis of such disease).
Lay evidence can be competent and sufficient to establish a
diagnosis of a condition when (1) a layperson is competent to
identify the medical condition, (2) the layperson is
reporting a contemporaneous medical diagnosis, or (3) lay
testimony describing symptoms at the time supports a later
diagnosis by a medical professional. Jandreau v. Nicholson,
492 F.3d 1372 (Fed. Cir. 2007). Also, when a condition may
be diagnosed by its unique and readily identifiable features,
the presence of the disorder is not a determination "medical
in nature" and is capable of lay observation. Barr v.
Nicholson, 21 Vet. App. 303 (2007).
Analysis
The Veteran contends he is entitled to service connection for
lymphoma of the right testicle, claimed as secondary to
exposure to ionizing radiation. While his claim was pending,
the Veteran has alleged exposure to radiation both from his
active duty in Japan and from his occupational duties as an
x-ray technician.
The Veteran has presented competent private medical evidence
showing that he underwent an orchiectomy in July 2004 to
remove his right testicle. However, the Board finds the
preponderance of the evidence is against the Veteran's claim
on the issue of whether exposure to ionizing radiation during
active service caused the Veteran's lymphoma of the right
testicle. As mentioned previously, the RO and AMC performed
extensive development in order to attempt to determine if the
Veteran was exposed to ionizing radiation in service and
whether it is at least as likely as not that such exposure
resulted in lymphoma. In January 2005, the DTRA reported
that the Veteran did not deploy to Japan until January 1947.
Since VA regulations consider July 1, 1946, the end of the
occupation of Hiroshima and Nagasaki, the DTRA properly
determined that the Veteran is precluded from a presumption
of service connection on the basis of his presence in those
cities during active military service. See 38 C.F.R.
§ 3.309(d)(3)(ii)(B). Thus, the DTRA concluded that the
Veteran was not present with the American occupation forces
in Hiroshima or Nagasaki. Thereafter, in February 2005, the
Dosimetry Laboratory informed the RO that the Veteran's
service predated their records. The RO received the same
response from the Army Proponency Command in March 2005.
Additionally, in November 2008, the Director, Compensation
and Pension Service, referred the Veteran's claims file to
the Under Secretary for Health for a radiation dose estimate.
The Director explained to the Under Secretary that the
Veteran was exposed to ionizing radiation when he was an x-
ray technician in Korea and at the Pentagon Dispensary from
1951 to 1953. The Chief Public Health and Environmental
Hazards Officer responded with a memorandum in April 2009.
He stated that since there is a lack of occupation dose
information for the Veteran, none of the several exercises
that could be performed to estimate the Veteran's actual dose
would be accurate so he would not attempt to estimate the
Veteran's exposure to ionizing radiation. Nevertheless, the
Chief was still able to analyze the Veteran's dose estimate.
He acknowledged that the annual limit of five rem per year is
considered a safe dose of radiation and can be received for
every year of a worker's occupational exposure.
Theoretically, the Veteran could have safely been exposed to
up to 15 rem to his whole body in his time in service.
According to the Chief, however, the Veteran would have had
to spend significant time in the x-ray room with the patient,
more than 100 times per week, in order to receive 15 rem of
exposure. He further stated that the technician usually
spends most of the time behind a shield or at least six feet
from the patient. Furthermore, the Chief asserts that even
if the Veteran had been exposed to 15 rem, the threshold for
a 50 percent probability of causation for lymphoma would be
closer to 34 rem of whole body exposure and would be in the
99th percentile. Thus, the Chief opined that it was unlikely
that the Veteran's lymphoma of the right testicle can be
attributed to radiation exposure received while performing
his duties as an x-ray technician while in military service.
In April 2009, the Director, Compensation and Pension
Service, wrote that based on a review of the evidence in its
entirety, including the Chief's opinion, the Compensation and
Pension Service also found that there is no reasonable
possibility that the Veteran's lymphoma of the right testicle
was the result of his occupational exposure to ionizing
radiation during service.
Thus, the Board finds that the Veteran was exposed to
ionizing radiation in service. Nevertheless, the Board finds
service connection unwarranted here because the preponderance
of the evidence of record indicates that the Veteran's
radiation exposure between November 1951 and November 1953
did not relate to his lymphoma of the right testicle that led
to his orchiectomy in July 2004. In this regard, the Board
notes that the Veteran's STRs are fire related and not
associated with the claims file. VA has obtained the
aforementioned radiation dose estimate and opinions, but the
Veteran has not submitted sufficient evidence to establish
his lymphoma in service or otherwise link lymphoma to his
active military service. The Board further notes that it has
closely reviewed and considered the Veteran's statements in
this matter. While these statements may be viewed as
evidence, the Board must also note that laypersons without
medical expertise or training are not competent to offer
medical evidence on matters involving diagnosis and etiology.
Therefore, the statements alone are insufficient to prove the
Veteran's claim. Ultimately, a lay statement, however
sincerely communicated, cannot form a factual basis for
granting a claim requiring medical determinations. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992).
In reaching this conclusion, the Board notes that under the
provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt
is to be resolved in the claimant's favor in cases where
there is an approximate balance of positive and negative
evidence in regard to a material issue. The preponderance of
the evidence, however, is against the claim and that doctrine
is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
Entitlement to service connection for lymphoma of the right
testicle as a result of exposure to ionizing radiation is
denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs